The U.S. Court of Appeals for the D.C. Circuit today heard arguments in a closely watched defamation case that could determine how the District's law barring strategic lawsuits against public participation, or SLAPPs, is used in federal court in the future.
The case represents the first challenge to the anti-SLAPP law, which went into effect in late March 2011, to reach arguments before the D.C. Circuit. The issues before the panel include whether the law can apply in federal court and whether parties can immediately appeal if a judge denies an anti-SLAPP motion.
However, the judges also seemed interested in more case-specific issues that could decide the matter before reaching broader questions about the law. Senior Judge A. Raymond Randolph in particular repeatedly expressed skepticism that the appellants – the late conservative blogger Andrew Breitbart and his colleague Larry O'Connor – met the deadline to file their anti-SLAPP motion.
Breitbart, O'Connor, and an as-yet-unnamed third defendant were sued by former U.S. Department of Agriculture official Shirley Sherrod in early February 2011 in District of Columbia Superior Court. The case was removed to federal court in early March – several weeks before the SLAPP law went into effect.
Sherrod accused Breitbart and his co-defendants of posting "deceptively edited" video clips of a speech she gave that made it seem as though Sherrod, who is black, discriminated against a white farmer. Sherrod resigned after the post went online, but she later received apologies from President Barack Obama and other officials after the full video was released.
Breitbart, who died last March and whose estate's role in the case is unsettled, and O'Connor stood by their content, saying that they had posted opinions about Sherrod's comments rooted in what she said and should be protected under the First Amendment. U.S. District Judge Richard Leon denied the defendants' anti-SLAPP motion in July 11, prompting the appeal.
The D.C. anti-SLAPP law was intended to give defendants an early out if they thought they were being sued over protected speech. Once a motion is filed, discovery is stayed and if the defendants win, they can collect attorney fees and costs. The city is one of more than two dozen jurisdictions to adopt an anti-SLAPP law, although they have varied in strength.
There are four main issues on appeal in the Sherrod case: whether the defendants met the deadline to file their anti-SLAPP motion; whether the law can retroactively apply to cases already pending when the law went into effect; whether the law applies in federal court; and whether defendants who lose an anti-SLAPP motion can immediately appeal.
Randolph pressed Baker & Hostetler counsel Bruce Brown, who represents O'Connor and argued for the defendants, to explain why the court shouldn't affirm Leon's dismissal on the timeliness issue. The anti-SLAPP law gives defendants 45 days to file a special motion to dismiss, which the defendants failed to do, Randolph said.
Brown argued that Leon granted two extensions, but Randolph countered that those extensions couldn't apply to a statutory deadline, such as the 45-day limit under the D.C. anti-SLAPP law. Brown maintained that judges had discretion to grant those types of extensions. (Brown, who is also executive director of the Reporters Committee for Freedom of the Press, was a reporter for Legal Times, now merged with The National Law Journal. He also represented the NLJ in a prior restraint action brought by beverage manufacturer POM Wonderful.)
On the question of whether the law allowed defendants to immediately appeal, Brown said that although the law didn't explicitly include a provision, the legislative record was clear that the D.C. Council intended to allow it. For example, Louisiana's SLAPP law didn't have a specific provision on immediate appeal, but the Fifth Circuit allowed it after looking at the legislature's intent, Brown said. Finally, he noted that there was evidence that city officials meant for the law to retroactively apply.
Ariel Levinson-Waldman, senior counsel to the attorney general in the D.C. Office of the Attorney General, handled arguments on why the law should apply in federal court. He said that contrary to Sherrod's position, the SLAPP law didn't conflict with the federal rules of civil procedure. An anti-SLAPP motion would ask the judge to weigh whether a defendant should be immune against a defamation lawsuit – a question not asked in a standard motion to dismiss – and offered different relief, he said.
Kirkland & Ellis partner Thomas Yannucci, a lead attorney for Sherrod, argued that the D.C. SLAPP law didn't – and couldn't – create an immunity that would give the defendants an immediate right of appeal. By that logic, he argued, any defendant could claim that they had a right to immediately appeal after losing a regular motion to dismiss, flying in the face of precedent against piecemeal appeals.
In light of the fact that winning an anti-SLAPP motion meant a defendant could collect attorney fees, Randolph asked what would happen if defendants had to wait until the end of a case to appeal. Yannucci said defendants couldn’t collect fees for the entire litigation if they ultimately won. On the issue of retroactivity, Yannucci said the record wasn't clear that city officials intended to allow for that, save for an "offhand comment" by the city's chief financial officer in discussing the law's fiscal effects.
Finally, Yannucci said the law clearly conflicted with federal rules of civil procedure. To decide an anti-SLAPP motion, a judge would have to not only weigh whether a lawsuit targeted protected speech, but also whether the plaintiffs were likely to win. Judges would be required to look at information outside of the complaint, he said, which falls into the realm of a summary judgment motion.
Randolph noted that the defendants didn't file the anti-SLAPP motion under the rules for standard motions to dismiss, which meant they weren't bound by rules requiring them to stay within the confines of the complaint. Yannucci said the defendants incorporated a separate motion to dismiss into their anti-SLAPP motion.
Judges Thomas Griffith and Janice Rogers Brown also heard the case. If the court doesn't decide whether the law applies in federal court in the Sherrod case, another case that addresses the issue is pending in the D.C. Circuit. In that case, the plaintiffs are appealing an order granting a SLAPP motion, among other things, in a defamation lawsuit against Esquire Magazine.
A previous version of this article misstated the name of D.C.'s anti-SLAPP law.